J-S20021-22

2022 PA Super 133

COMMONWEALTH OF PENNSYLVANIA

v.

JAROD MAURICE MCMAHON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 778 WDA 2021

Appeal from the Judgment of Sentence Entered June 3, 2021

In the Court of Common Pleas of Allegheny County

Criminal Division at CP-02-CR-0007086-2020

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

OPINION BY MURRAY, J.: FILED: August 8, 2022

Jarod Maurice McMahon (Appellant) appeals from the judgment of 

sentence imposed after the trial court convicted him of one count of 

possession of a controlled substance and one count of possession of 

marijuana.1 After careful review, we affirm.

The trial court summarized the facts as follows:

On May 21, 2020, Sergeant [Harrison] Maddox and Detective 

[Nathan] Dettling of the City of Pittsburgh Bureau of Police 

encountered [Appellant] while on routine patrol. Both officers 

were aware, from previous encounters with [Appellant], that he 

did not possess a valid driver’s license. Consequently, they 

conducted a traffic stop of [Appellant]. Sergeant Maddox testified 

that upon approaching the vehicle he smelled marijuana 

emanating from the vehicle. Sergeant Maddox clearly observed 

two (2) burnt marijuana cigarettes in the center cupholder sitting 

in plain view. Sergeant Maddox further testified that the 

cigarettes were “brown in color with green vegetable matter in the 

interior with orange crystalline features” that he found to be 

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1 35 P.S. §§ 780-113(a)(16), (31).
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indicative of marijuana. At that time, [Appellant] was removed 

from the inside of the vehicle; detained; and searched incident to 

arrest. The search of [Appellant] resulted in the recovery of one 

and a half pills that were later determined to be Oxycodone. 

Sergeant Maddox subsequently searched the vehicle and 

recovered three (3) additional bags of marijuana from inside the 

center console of the vehicle.

Trial Court Opinion, 11/8/21, at 2 (unnumbered) (footnotes omitted).

The Commonwealth charged Appellant with the forementioned offenses. 

On February 2, 2021, Appellant filed a motion to suppress the marijuana 

cigarettes, the bags of marijuana found in the center console, and the 

Oxycodone pills. Defense counsel requested, and was granted, the 

opportunity to brief the issues. 

The trial court held a suppression hearing, and following oral argument

on June 3, 2021, granted Appellant’s motion to suppress the bags of 

marijuana found in the center console, but denied suppression of the 

marijuana cigarettes and Oxycodone pills. That same day, following a 

stipulated non-jury trial, the court found Appellant guilty of possessing a 

controlled substance and possessing marijuana. The court immediately 

sentenced Appellant to a six-month term of probation for possession of 

Oxycodone; the court imposed no further sentence for possession of 

marijuana. Appellant filed a motion for reconsideration, which the trial court 

denied on June 21, 2021. This timely appeal followed. Appellant and the trial 

court have complied with Pa.R.A.P. 1925.

Appellant raises a single issue for our review:
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I. Did the [trial] court err in denying [Appellant’s] motion to 

suppress evidence under the plain view doctrine because officers 

had no lawful right of access to items inside the vehicle at the time 

of the seizure and no other exigency applies?

Appellant’s Brief at 5.

Pertinently, our review of the denial of suppression

is limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. We are bound by the suppression 

court’s factual findings so long as they are supported by the 

record; our standard of review on questions of law is de novo. 

Where, as here, the defendant is appealing the ruling of the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted. Our scope of review of suppression 

rulings includes only the suppression hearing record and excludes 

evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations 

omitted).

“Both the Fourth Amendment of the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals 

freedom from unreasonable searches and seizures.” Commonwealth v. 

Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en banc) (citation omitted, 

appeal denied, -- A.3d ---, 2022 WL 1656792 (Pa. May 25, 2022). “As a 

general rule, ‘a warrant stating probable cause is required before a police 

officer may search for or seize evidence.’” Id. (citation omitted). Regarding 

automobiles, “Article I, Section 8 affords greater protection to our citizens 

than the Fourth Amendment, and . . . the Pennsylvania Constitution requires 

both a showing of probable cause and exigent circumstances to justify a 
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warrantless search of an automobile.” Commonwealth v. Alexander, 243 

A.3d 177, 181 (Pa. 2020) (overruling Commonwealth v. Gary, 91 A.3d 102 

(Pa. 2014) (adopting federal “automobile exception” to the warrant 

requirement and holding police may conduct a warrantless vehicle search 

based solely on probable cause, with no exigency required beyond the 

inherent mobility of a motor vehicle)). “Absent the application of one of a few 

clearly delineated exceptions, a warrantless search or seizure is presumptively 

unreasonable.” Heidelberg, 267 A.3d at 502 (citation omitted). Such 

exceptions include “the consent exception, the plain view exception, the 

inventory search exception, the exigent circumstances exception, the 

automobile exception ... the stop and frisk exception, and the search 

incident to arrest exception.” Commonwealth v. Simonson, 148 A.3d 792, 

797 (Pa. Super. 2016) (citation omitted, emphases added).

Here, the trial court suppressed the three bags of marijuana found in 

the console of the vehicle pursuant to Alexander. See Trial Court Opinion, 

11/8/21, at 3 (unnumbered). The trial court denied suppression of the 

Oxycodone pills, which Appellant does not challenge. See Appellant’s Brief at 

9-10. Thus, the only issue on appeal concerns the seizure of the burnt 

marijuana cigarettes that police recovered from the center cup holder of 

Appellant’s vehicle.

The trial court explained its reasoning for denying suppression of the 

burnt marijuana cigarettes as follows:
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The [Pennsylvania Supreme] Court in Alexander [ ] did not go as 

far as establishing a warrant requirement for items found in plain 

view. In the most recent case to address the “plain view” 

standard, Commonwealth v. McCree states that in order for an 

item to be seized by police officers it must meet three prongs: (1) 

the police must be at a lawful vantage point, (2) the incriminating 

nature of the object must be immediately apparent, and (3) the 

police must have a lawful right of access to the object. 

[Commonwealth v. McCree, 924 A.2d 621, 624 (Pa. 2007)]. 

Prior to the Court’s determination in Alexander, the limited 

automobile exception would have served as a basis for the lawful 

right of an officer to access an object seen in plain view inside a 

vehicle. [Id. at 631.] . . . Applying this precedent to the case 

here, Sergeant Maddox credibly testified that the incriminating 

nature of the object was immediately apparent, as the cigarettes

looked and smelled like marijuana. Therefore, the officers had a 

lawful right of access to the object. Upon approaching the vehicle, 

Sergeant Maddox testified that he smelled burnt marijuana and 

saw two (2) marijuana cigarettes in plain view. In order to 

prevent the destruction of the evidence, the officers seized the 

contraband and arrested [Appellant]. 

Trial Court Opinion, 11/8/21, at 3-5 (unnumbered) (footnotes omitted).

Appellant does not dispute that police viewed the marijuana cigarettes 

from a lawful vantage-point, or that the incriminating nature of the marijuana 

cigarettes was “immediately apparent.” See Appellant’s Brief at 9-10, 22-23. 

Instead, he contends: “As there was no warrant the officers needed an 

additional exigency besides probable cause in order to seize the items inside 

the vehicle.”

2

 Id. at 9. Appellant further maintains “the officers had no lawful 

right to access the interior of the car to seize them.” Id. at 9-10. We disagree.

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2 While Appellant briefly mentioned the lack of exigent circumstances (lack of 

lawful access) in his suppression motion, it was not the focus of his argument. 

See Motion to Suppress, 2/2/21, at 2 (unnumbered). Appellant alluded very 

(Footnote Continued Next Page)
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Appellant relies on Alexander to support his claim that exigent 

circumstances were necessary for the lawful seizure of the marijuana 

cigarettes. Appellant’s Brief at 24-25. However, Alexander addresses the 

automobile exception to the warrant requirement, not the plain view 

exception. Alexander, 247 A.3d at 181; see also Simonson, 148 A.3d at 

797. 

Our Supreme Court has expressly recognized that incriminating 

objects plainly viewable [in the] interior of a vehicle are in plain 

view and, therefore, subject to seizure without a warrant. This 

doctrine rests on the principle that an individual cannot have a 

reasonable expectation of privacy in an object that is in plain view.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (citations and 

quotation marks omitted). The Pennsylvania Supreme Court has distinguished

the limited intrusion of the seizure of evidence in plain view from the greater 

intrusion of an automobile search. McCree, 924 A.2d at 627. 

Recently, this Court addressed the plain view doctrine in the context of 

Alexander. In Commonwealth v. Lutz, 270 A.3d 571 (Pa. Super. 2022), 

police responded to a report of a suspicious vehicle parked near a private 

community on a road owned by the local water authority. Id. at 574. As 

police approached the vehicle, the sole occupant, the driver, staggered out of 

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briefly to the lack of exigent circumstances, but mainly argued the 

incriminating nature of the marijuana cigarettes was not immediately 

apparent, given Pennsylvania’s Medical Marijuana Act (MMA). See N.T., 

3/4/21, at 7-12, 13-14, 19-25. Appellant has abandoned this argument on 

appeal. See Appellant’s Brief at 9-10, 22-23. 
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the vehicle and walked toward police in a manner indicative of intoxication. 

Id. at 574-75. Police were unable to conduct field sobriety tests or obtain an

accurate breathalyzer result because of the driver’s apparent impairment. Id. 

at 575. As Sergeant Shawn Nunemacher approached the vehicle, which was 

still running, he observed a marijuana pipe on the driver’s seat. Id. Sergeant 

Nunemacher arrested the driver for suspicion of driving under the influence, 

seized the pipe, and searched the vehicle. Id. at 576. Prior to trial, the driver 

sought suppression. The trial court denied suppression of the marijuana pipe, 

and we affirmed.

3

 We explained, “Alexander did not impact [the trial court’s]

ruling because its decision did not ‘rest upon the analytical underpinnings of 

the automobile exception to the warrant requirement, but rather upon an 

application of the plain view’” exception. Id. at 576 (citation to trial court 

opinion omitted). 

In addition, we briefly addressed whether the incriminating nature of 

the pipe was immediately apparent, stating, “it is clear from the record that 

Sergeant Nunemacher was lawfully outside of Lutz’s still-running vehicle when 

he first observed the pipe in plain view on the driver’s seat from the vantage 

point of the open car door and window.” Id. at 578. We also stated, “the 

legality of the seizure of the pipe hinges on whether its incriminating character 

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3 We reversed the trial court’s denial of suppression as to the vehicle search. 

Lutz, 270 at 579-80.
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was readily apparent and whether the Sergeant had a lawful right of access 

to the pipe itself.” Id.

As discussed above, Alexander did not involve plain view. Appellant

points to nothing in Alexander which modified the plain view doctrine, and 

we decline to apply Alexander. Rather,

“where police officers observe incriminating-looking contraband in 

plain view in a vehicle from a lawful vantage-point, the lack of 

advance notice and opportunity to obtain a warrant provides the 

officers with a lawful right of access to seize the object in 

question.” Commonwealth v. Miller, 56 A.3d 424, 429 (Pa. 

Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d 544, 

557 (Pa. Super. 2011) (en banc)). Here, the officers had a lawful 

right of access to the vehicle where [a]ppellant was under arrest, 

and in securing his vehicle, they had no advance notice and 

opportunity to obtain a warrant with respect to the bags they 

observed on the driver’s seat and console of the vehicle. See, 

e.g., Miller, 56 A.3d at 430-31 (holding police officer’s 

warrantless seizure of beer bottles from inside appellant’s vehicle 

was lawful under plain view exception where incriminating nature 

of bottles was immediately apparent and officer lacked advance 

notice and an opportunity to obtain warrant before commencing 

search).

Heidelberg, 267 A.3d at 505 (one citation omitted).

Consistent with the foregoing, we conclude police had a lawful right of 

access to the marijuana cigarettes observed in plain view. As the seizure was 

lawful, the trial court did not abuse its discretion in denying suppression of the 

marijuana cigarettes. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022